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An Important Option to Consider for Filing Patent Applications in the COVID-19 Era



We may be living in uncertain times right now but that does not mean the end of technological innovations. In fact, many individuals, companies, and even entire industries are innovating more than ever now—intentionally or not—as they strive to adapt to the changing needs of users and consumers due to the ongoing pandemic. However, because companies are generally wanting (or needing) to spend less money and may be cutting back on various expenses such as for pursuing patent protection on their innovations, they may find themselves regretting those choices down the road. The cost of obtaining a patent is not insignificant but what people and companies need to understand—now more than ever—is that there is a lower cost option for securing priority and patent protection down the road: provisional patent applications.

The most common types of patent applications are utility applications (which seek to protect functionality) and design patent applications (which seek to protect non-functional designs). Utility applications are typically filed as nonprovisional applications (also known as “regular” applications) but can also be filed as provisional applications. Whereas a nonprovisional application can eventually become an issued patent (assuming certain eligibility criteria and patentability requirements are met), a provisional patent application can never, by itself, result in an issued patent.

If a provisional application cannot by itself become a patent, why would anyone ever want to file one? There are several, practical reasons. For example, a provisional application provides the applicant with a priority date, which can be very important in and of itself. Filing a provisional also gives the applicant the right to mark the invention “patent pending,” which puts the public on notice that the applicant believes the technology to be patentable. Also, the requirements for a provisional are vastly less than for a nonprovisional. In addition, and this is especially important during the continuing global health crisis, the costs for preparing and filing provisional applications are significantly less than for nonprovisional applications.

Provisional applications automatically expire 12 months from filing, with no possibility of being renewed.  So, once a provisional application is filed, the applicant has 12 months to file a nonprovisional application that claims the benefit of the provisional.

In a time where nobody can meaningfully predict where any of us will be in 12 months, filing a provisional application is the answer for many innovators. The patent attorneys at Miller Nash Graham & Dunn are here to help you.

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